gay marriage

Yesterday was the presentation of the case to the 9th circuit. Now, it’s not the full 9th circuit, which means that whatever these three judges decide, they may well have to reconvene with the rest of the 9th circuit if whoever loses this round decides to appeal. It’s sort of a weird situation but it appears that, whatever they rule, the loser can then appeal either to the full 9th or to the Supreme Court. If they appeal to the full 9th, they will probably then appeal to the Supreme Court anyway. It all feels a bit futile when you know that it’s going to get appealed all the way up.

The three judges on the panel are, from most liberal to most conservative, Stephen Reinhardt, Michael Hawkins and Randy Smith. Both Reinhardt and Hawkins seemed to agree with Judge Walker’s logic, while Smith seemed to be a bit more on the fence. Even he, a fairly conservative republican, had a hard time with the idea that California had given a right and then taken it away — this led to one of the better lines of the day, in which a judge asked if it would be OK for California voters to reinstitute segregation. Smith did, however, think that promoting procreation and a biological mom and dad family environment was a reasonable rational basis for excluding homosexuals from the instituion.

His biggest problem with the prosecutorial case came with the question of standing. For those not following, the official defendants named in the case refused to defend the law, so several other people joined the lawsuit as Defendant Intervenors. The DI aren’t people who would normally even be allowed to participate, but because no one was defending Prop 8 in California, they were allowed to join the case. The question now is whether they are qualified to be DIs in a federal court.

The answer basically appears to be no, especially since SCOTUS has been tightening restrictions on who can be a DI in federal court over the last couple of decades. The problem Judge Smith has, and I actually agree with him here, is that California has a process that says that the Governor cannot veto something voted on by the people and that, by refusing to defend Prop 8, he’s nullifying what the people want.

So, I don’t think that any of the DI actually deserve standing, but in the absence of an official Defendant, I feel like to respect the legislative process in California, it might be necessary for the 9th court to recognize the DIs in this case.

I posted a flow chart yesterday that explains exactly how convoluted all of this is, but if the 9th Court determines that the DI don’t have standing, and SCOTUS agrees, then Walker’s ruling stands and gay marriage is legal in CA. If it’s determined that the DI do have standing, then it’s a much longer road to a final opinion, but there’s a chance that that opinion will legalize gay marriage nationwide.

By a longer road, I mean a wait for the 3 judges to rule on the constitutionality of Prop 8, then an optional wait for the full 9th court to rule on it, then a wait on SCOTUS to see if 4 judges want to have a hearing, and then finally a wait for SCOTUS to make a final ruling.

Now, in terms of argument, it has never been clearer that the DI simply don’t have one that goes beyond “gay people can have children, but they can’t do it accidentally and, even though there are no fertility requirements on straight people, we think that calling an institution marriage promotes responsible child-rearing, and we don’t think encouraging gays to responsibly procreate is something that marriage should do because they do it anyway.” And, revealingly, the judges asked how wide a ruling that agreed with Walker would have to be — in other words, if they agree that Prop 8 isn’t constitutional, do they then have to say that gay marriage is a right in their jurisdiction? Olson wiggled a bit, saying that that’s what he’s asking for without trying to bind their hands.

Being able to watch this all on live video just underlined how bad the lawyers on the DI side are and how good Boies and Olson are. I know that sounds like a biased opinion, but even ignoring the strength of argument, the DI lawyers stuttered, stammered, and weaseled their way through their arguments, only to be repeatedly called on it by the judges who threw out such gems as:

“Is there anything in the record to indicatate that she has any authority whatsoever?”

“You’re repeating yourself now.”

“If you don’t know the answer, say you don’t know.”

It was painful, but since it was televised, I really hope that some people who weren’t as familiar with the trial got the chance to see just how illogical the DI position is and how eloquent, intelligent and prepared the prosecution is. If you get the opportunity, I urge you to watch it, I will probably watch it again myself. http://www.youtube.com/watch?v=TA_vFjjd3yM

The DI also continue to shoot themselves in the foot by saying things like “the word is the institution,” which just underlines that even if gays had access to everything but the word, they wouldn’t have access to the institution itself. I’ll let Therese Stewart end this, because she is amazing(paraphrase from here):

If the word is the institution, then the argument is just that gays and lesbians would “stain” the institution. The fact that Prop 8 is symbolic, it makes the insult obvious. This is classification for its own sake, and it violates the equal protection clause. Taking these components together, it infers animus.

If we only passed Prop 8 to show that same-sex couples aren’t as good, or as worthy as other couples, then isn’t the equal protection argument plain to see? It reveals the naked schoolyard taunting aspect of Prop 8. Nah-nanny-boo boo, you aren’t as good as me. And frankly, nanny-boo-boo isn’t a valid use of state authority.

No second source confirming yet: According to a source who has seen the 136-page decision, U.S. District Court Judge Walker has ruled Proposition 8, the California voter-approved ban on gay marriage, unconstitutional under both the due-process and equal-protection clauses.

From what I can tell, there’s only one argument that Prop 8 Proponents have, which is that only heterosexuals can get accidentally pregnant, so marriage is necessary only for them. It’s a strange argument, no doubt, but it is essentially the only quantitative difference between gays and some heterosexuals. I say some because, of course, people who are infertile, past menopause, or who have no intention of reproducing are allowed to get married, so long as their genitals look one way or another. To say that marriage is only about protecting children from being accidentally created is… well… changing the definition of marriage, which is supposedly something these guys are against. Judge Walker said it nicely.

And [marriage], as Mr. Olson described this morning, is a right which extends essentially to all persons, whether they are capable of producing children, whether they are incarcerated, whether they are behind in their child support payments. There really is no limitation except, as Mr. Olson pointed out, a gender limitation.

Judge Walker asked a series of penetrating questions, I was quite impressed. They were the questions I would have asked, but much less snarky. He asked why the chief witness for the Prop 8 side had said we’d be more American the day we allowed same-sex marriage, he asked why it’s OK to take away the rights of a minority when nothing good comes of doing so, he wanted to know why it wasn’t gender discrimination if not homosexual discrimination, and he wanted to know if it was appropriate for the court to make a decision still being fought over politically. And of course Mr. Olson was eloquent as always.

What we’re talking about here is allowing individuals who have the same impulses, the same drives, the same desires as all of the rest of us, to have a relationship in harmony, stability, and to form a family and a neighborhood, all of those things that the Supreme Court talked about. And, now, tell me how it helps the rest of the citizens of California to keep them out of the club. It doesn’t.

These are, undoubtedly, very pretty words. But I actually think the entire decision is going to come down to one exchange between Walker and Olson, and it’s not necessarily a terribly pretty one, but it is, I think, the most important. And that is, is it politically viable to send this to the Supreme Court now? It’s an important question, and one that a lot of people who support gay marriage disagree on. There was a lot of hostility and distrust from the gay community at the beginning of this trial because they were afraid it was doomed from the start and would sink the chances of gay marriage getting passed because the Supreme Court is so conservative (little c).

This is a long excerpt, but as I think everything depends on it, I’ll leave it long.

THE COURT: I fully understand. But there was already a tide running, a political tide running with respect to interracial marriage. And, as Mr. Cooper duly commented about the Supreme Court, the Supreme Court took note of that. Now, do we have a political tide here that’s going to carry the Supreme Court?

MR. OLSON: I believe, Your Honor, that there is a political tide running. I think that people’s eyes are being opened. People are becoming more understanding and tolerant. The polls tell us that. That isn’t any secret.

But that does not justify a judge in a court to say, “I really need the polls to be just a few points higher. I need someone to go out and take the temperature of the American public before I can break this barrier and break down this discrimination.”

Because if they change it here in the next election in California, we still have Utah. We still have Missouri. We still have Montana. This case is going to be in a court. Some judge is going to have to decide what we’ve asked you to decide.

And there will never be a case with a more thorough presentation of the evidence. There will never be a case with such a wildly crazy system that California has. There will never be a case more like Romer, where the right existed and hen it was taken away. There will never be a case against the background.

The Supreme Court really made that step that you are talking about, in Lawrence vs. Texas. And that overruled Bowers vs. Hardwick, which was only 20 years earlier. But that broke the barrier by saying that the behavior, the conduct between the individuals is a right of privacy, and it’s protected by the Constitution.

And the right of privacy is the same right that we’re talking about in the context of marriage. And I don’t think that is justification for waiting any longer.

And, as I said, the most compelling thing that I have read on that subject was the arguments that were being made to Martin Luther King saying, you know, “You ought to ease up. The people aren’t ready for these kind of changes. There’s going to be a backlash.”

And his letter from a Birmingham jail explaining why he could not wait to press the civil rights of his fellow citizens is as compelling a statement on that subject that’s ever been written.

And that’s the argument. Everything else is proven, Prop 8 is unconstitutional, it’s wrong, there’s nothing that the Proponents have said that holds any water. The only argument holding any water is the one Judge Walker is acknowledging, which is that maybe America isn’t ready to be the place it promises to be. And there are many pragmatists, old and young, gay and straight who will agree with that, and there are many idealists who are crying and screaming and gnashing their teeth at the thought that politics is ever more important than human decency.

I think Judge Walker is ultimately a pragmatist, but he’s got a long view of things, and I think he’ll want to be on the right side of history. So, my bet is that he’ll rule in against the constitutionality of Prop 8 and do so very conservatively and thoroughly, the real question is whether he’ll immediately reinstate gay marriages or not, and I tend to think he won’t. But maybe.

I’ll sum this up for you. Two men, Harold and Clay, lived together for 20 years in Sonoma County, CA, they took extreme care to make sure they had legal protections in place so that they could take care of one another. Instead, when Harold fell, the county and healthcare workers ignored all the legal paperwork and refused to let Clay see him, refused to let Clay dictate the medical treatment, they forcibly removed Clay from their home and put him in a separate nursing home from Harold, against his will, and finally they took all of their belongings from that home and auctioned them off. Harold died alone three months later. Clay was finally able to get an attorney to get him out of the nursing home, but his home and all of his belongings were gone.

All of this in a county in California that voted 68% against Prop 8 — this is a place with support for marriage equality that still did this to a gay couple. People don’t understand that this isn’t just a fight for a word, this is a fight for adults wanting to be treated as adults, capable of choosing who is important to them and who has a say in their lives. This is about incredibly basic human decency that gay people are denied. People think, oh stuff like that doesn’t happen anymore.

Yes, it does. And it’s inhumane and disgusting and cruel. And when you don’t support gay marriage, what you’re saying is “I want this to happen to people. I don’t think gay people deserve to be treated like humans, they aren’t human as far as I’m concerned. It’s not enough for them to live their lives away from me, I want them to suffer.” Every single organization, every single politician, every single person who supports the ban on gay marriage is tacitly endorsing this abuse.

Clay and his partner of 20 years, Harold, lived in California. Clay and Harold made diligent efforts to protect their legal rights, and had their legal paperwork in place—wills, powers of attorney, and medical directives, all naming each other. Harold was 88 years old and in frail medical condition, but still living at home with Clay, 77, who was in good health.

One evening, Harold fell down the front steps of their home and was taken to the hospital. Based on their medical directives alone, Clay should have been consulted in Harold’s care from the first moment. Tragically, county and health care workers instead refused to allow Clay to see Harold in the hospital. The county then ultimately went one step further by isolating the couple from each other, placing the men in separate nursing homes.

Ignoring Clay’s significant role in Harold’s life, the county continued to treat Harold like he had no family and went to court seeking the power to make financial decisions on his behalf. Outrageously, the county represented to the judge that Clay was merely Harold’s “roommate.” The court denied their efforts, but did grant the county limited access to one of Harold’s bank accounts to pay for his care.

What happened next is even more chilling: without authority, without determining the value of Clay and Harold’s possessions accumulated over the course of their 20 years together or making any effort to determine which items belonged to whom, the county took everything Harold and Clay owned and auctioned off all of their belongings. Adding further insult to grave injury, the county removed Clay from his home and confined him to a nursing home against his will. The county workers then terminated Clay and Harold’s lease and surrendered the home they had shared for many years to the landlord.

Three months after he was hospitalized, Harold died in the nursing home. Because of the county’s actions, Clay missed the final months he should have had with his partner of 20 years. Compounding this tragedy, Clay has literally nothing left of the home he had shared with Harold or the life he was living up until the day that Harold fell, because he has been unable to recover any of his property. The only memento Clay has is a photo album that Harold painstakingly put together for Clay during the last three months of his life.

With the help of a dedicated and persistent court-appointed attorney, Anne Dennis of Santa Rosa, Clay was finally released from the nursing home. Ms. Dennis, along with Stephen O’Neill and Margaret Flynn of Tarkington, O’Neill, Barrack & Chong, now represent Clay in a lawsuit against the county, the auction company, and the nursing home, with technical assistance from NCLR. A trial date has been set for July 16, 2010 in the Superior Court for the County of Sonoma.

This is an email I got from someone I was debating on a facebook thread. We were talking about how the Catholic church needed to stop being so secretive and punish the molesters and let local governments prosecute the crimes and he said why shouldn’t they punish the homofags and adulterers and I said the church could do whatever it wanted to its own members but that in America that behavior wasn’t illegal because the church didn’t dictate morality. And it devolved from there.

I think evangelicals or born-agains or Christianists or Crispies or whatever you want to call them don’t really understand people who have actually thought about their beliefs rather than accepted them on blind faith. They say things that they think are meaningful but have no meaning for someone who doesn’t have any belief whatsoever. This is a service to them, so they understand how they come across. I doubt they care how they come across, but maybe they do. First, the letter in its entirety, then, with comments.

Dear Ashley,
Sorry, I thought it more appropriate now to respond with a message.

BTW, I’m an XXXX graduate. I was a XXX Fraternity and have that mark of shame branded on my ankle, though I do love many of the friends I made in the fraternity.

The judgments of the Old Testament are nothing in comparison to what the Holy Spirit has revealed will happen when Christ comes to judge the world in the book of Revelation. According to Revelation, people will beg to be stoned to escape God’s wrath. Christ also makes many references to this as well in the gospels.

So the question that this whole discussion leads to is one of belief or unbelief. Was Jesus Christ a fraud and liar? If he was a fraud then I’m a fool and I’m wasting my life. If he was who he claimed to be then I’d encourage you to read the gospels, and see how often he calls people to repentance.

Also, Christ did not come to abolish the law, but to fulfill the law. The Old Testament laws you mention are only understood rightly in the context of the gospel of Christ’s resurrection. The law is there to make us aware of our sin. We are all guilty. But in Christ we are washed and made clean. Your soul and mine are tainted, and we deserve the wrath of God. But God is merciful and gracious, and has sent given us a means to be spared our just punishment. Scripture reveals that God is holy, and there is not one of us that does good (Psalm 14). The sacrifices of the Old Testament point to the sacrifice of Christ. All of the blood of goats and lambs cannot save any man’s soul, but they are markers which point to Christ, as prophesied in Isaiah. The laws of the Old Testament are harsh judgments, but again, nothing in comparison to what Scripture reveals the wrath of God is like.

We may think that the God I believe in is not like that. Again, the Old Testament is full of the history of Israel’s idolatry, worshiping false gods. Things haven’t changed much. They just take on a different form in our postmodern world.

Morality will never bring peace to this world. Notice how the more laws we make, the bloodier we become.
Feminism has its victory and we slaughter babies in their mothers womb and men more and more see women as objects of sexual pleasure.

There is no true peace outside of Jesus Christ. As a fellow artist, you may some day find that art will leave you hungry, and empty, always wanting to do more. We think that the next success will lead to our satisfaction, but it is an empty well.

I write this not to be right. I don’t care about winning arguments, and frankly, I’m pretty bad at it as you could tell.
I don’t care about conservatism and political movements. But I do care that people know the glorious gospel of Jesus Christ and pray that they will come to know the incredible and lasting joy of the Lord.

All of the world’s experiments of unity through diversity are failures…just look at a college campus. But there is true unity in Christ, since he makes his own all brothers and sisters in him. In Christ we are all made equal in what Christ does for us, not in what we do.

Blessings,
XXX

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And with thoughts.

Sorry, I thought it more appropriate now to respond AKA proselytize with a message.

BTW, I’m an XXXX graduate. I was a XXX Fraternity and have that mark of shame branded on my ankle, though I do love many of the friends I made in the fraternity.

K, much as I hate Greek life and think tattoos are tacky, mark of shame? Really? I’m already so creeped out I don’t want to read the rest.

The judgments of the Old Testament are nothing in comparison to what the Holy Spirit has revealed will happen when Christ comes to judge the world in the book of Revelation. According to Revelation, people will beg to be stoned to escape God’s wrath. Christ also makes many references to this as well in the gospels.

Read: Blah blah blah End Times blah blah. Yeah, I read the Left Behind novels… started, and then it got too stupid. Here’s the thing, who wants anything to do with the dickhead God who did all of those things in the OT and is going to do all those things in the future? He may be ineffable, but a dick move is a dick move. Trying to scare me into worshipping God isn’t going to work.

So the question that this whole discussion leads to is one of belief or unbelief. Was Jesus Christ a fraud and liar? Or did he even exist? Did other people make up myths around a real guy? Let’s not assume he’s the bad guy here. If he was a fraud then I’m a fool and I’m wasting my life. True. If he was who he claimed to be or who other people later claimed him to be then I’d encourage you to read the gospels, and see how often he calls people to repentance. I’ve read the book, I have yet to be enlightened as to why I’m supposed to believe it. And that was an if phrase, meaning you’ve gotta prove your side before I have to do anything.

Also, Christ did not come to abolish the law, but to fulfill the law. The Old Testament laws you mention are only understood rightly in the context of the gospel of Christ’s resurrection. The law is there to make us aware of our sin. We are all guilty. But in Christ we are washed and made clean. Your soul and mine are tainted, and we deserve the wrath of God. But God is merciful and gracious, and has sent given us a means to be spared our just punishment. Scripture reveals that God is holy, and there is not one of us that does good (Psalm 14). The sacrifices of the Old Testament point to the sacrifice of Christ. All of the blood of goats and lambs cannot save any man’s soul, but they are markers which point to Christ, as prophesied in Isaiah. The laws of the Old Testament are harsh judgments, but again, nothing in comparison to what Scripture reveals the wrath of God is like.

Creepy. And underlines my point that God is a dick. I like the christians who think God is love and hippies and stuff.

We may think that the God I believe in is not like that. Yes! Like those hippies! If a god commits evil acts what makes him not the devil? Again, the Old Testament is full of the history of Israel’s idolatry, worshiping false gods. Things haven’t changed much. They just take on a different form in our postmodern world.

Yeah, difference between worshipping a false god and not worshipping. And, had there not been so much to make me tune out already, I’d have tuned out here. This guy seems to think Paganism and atheism/agnosticism/skepticism are the same thing. Which is straight up uneducated.

Morality will never bring peace to this world. Notice how the more laws we make, the bloodier we become.

The hell does this even mean? I’m seriously.

Feminism has its victory and we slaughter babies in their mothers womb and men more and more see women as objects of sexual pleasure.

Let us dismiss for a moment my stance on abortions and sex, but let’s talk feminism. You’re really going to talk to a woman and say that men are better than women and then expect her to listen to anything you say? You’ve got to ease into those things, lure them into religion with cookies and songs, then spring the whole “Women should be submissive and worship men” thing after they’re already in. And religions, even Christian ones, don’t all agree on the abortion thing, there’s the whole “breath” thing or the whole 40 or 90 days thing.

There is no true peace outside of Jesus Christ. As a fellow artist, you may some day find that art will leave you hungry, and empty, always wanting to do more. We think that the next success will lead to our satisfaction, but it is an empty well.

Condescending. Oh so condescending. Why is it so difficult for the Jesus lovers to accept that some people can have fulfilling lives that are about living their life not trying to please some guy who’s not very good at explaining what he wants or why in an attempt to make the theoretical after life better?

I write this not to be right. Well, thank God he knows he’s wrong. I don’t care about winning arguments, then why are you arguing? and frankly, I’m pretty bad at it as you could tell. Well, there’s a moment of bright shining honesty.

I don’t care about conservatism and political movements. Except the ones I’ve mentioned in this letter like feminism and abortion policy. But I do care that people know the glorious gospel of Jesus Christ and pray that they will come to know the incredible and lasting joy of the Lord. Vomit.

All of the world’s experiments of unity through diversity are failures…just look at a college campus. Again, what does that mean? And what does it have to do with anything? And… just what? But there is true unity in Christ, hence the complete lack of sectarianism. I forgot that all Christians were exactly the same and had exactly the same beliefs. since he makes his own all brothers and sisters in him. In Christ we are all made equal in what Christ does for us, not in what we do.

Blessings,
This reminds me of a vice principal i had in public school who always said “Have a blessed day.” This really got my goat for two reasons. A) the whole George Carline stop telling me to have a nice day and B) The unnecessary religiosity of the statement.

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In other news, I’m now an ordained minister with the First Church of Atheism, meaning I can officiate weddings and stuff.